With Trans Mountain, there’s no legislating away the duty to consult First Nations

Somewhere in the halls of government, the team tasked with the Trans Mountain pipeline is running around in circles and sweating profusely. So the Liberal MPs on the natural resources committee were sent out to stall for time.

After taking a big gamble on the $4.5-billion purchase of the pipeline project and seeing it halted by a court decision, Justin Trudeau’s government doesn’t yet have a good answer for the question that follows: What now?

Liberal MPs on the committee therefore blocked opposition attempts to call Finance Minister Bill Morneau and Natural Resources Minister Amarjit Sohi to explain how the government dropped the ball, and what the next steps will be.

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But the answer to the question about what to do now must revolve around one of the two flaws the court found in the process for reviewing the pipeline – that the government didn’t conduct a proper consultation with Indigenous peoples.

The other flaw was the National Energy Board's failure to consider the impact of increased tanker traffic on the environment. Some, including Alberta Premier Rachel Notley, had suggested Ottawa must take drastic action such as legislating a shortcut past a new marine-safety review. But that won’t help get past the bigger issue for this pipeline and future projects: First Nations consultations.

Two pipeline projects have now met the same fate. The now-dead Northern Gateway pipeline was approved by the cabinet of former Prime Minister Stephen Harper, but after Mr. Trudeau cancelled it, a court ruled the approval was invalid anyway, on the grounds the Conservative government hadn’t met the required standard for consulting Indigenous people.

The Liberals had that ruling as a guide in how-not-to-screw-it-up, but still did. The process was planned the right way, but implemented wrong, according to the Federal Court of Appeal.

The third phase of consultations, where things were supposed to get down to the nitty-gritty, were inadequate because bureaucrats were sent to listen and take notes, but not deal with the concerns of specific First Nations. And since the Supreme Court had previously ruled that consultations must be a meaningful dialogue, that wasn’t good enough.

It’s a Trudeau-esque kind of failing: consultations big on I-hear-you listening, but not on meaningful replies.

But it matters. The duty to consult stems from the notion of honour of the Crown living up to historical commitments, and it’s enshrined in the Constitution. There’s no way to legislate it away, or use the notwithstanding clause. And if there’s a third strike in consulting Indigenous people on a pipeline, it will sap confidence that major projects can proceed if they affect First Nations' rights.

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It’s Mr. Trudeau’s responsibility to complete a consultation. Politically, he obviously has a lot riding on it. It’s not really seats in the oil patch, because Liberal prospects in Alberta and Saskatchewan look pretty grim. But he sunk political capital into the idea that a pipeline to the ocean and carbon taxes across the nation are a way of advancing both the environment and the economy. He picked Trans Mountain as the vehicle and promised it would get built. And when the project was in danger, he spent $4.5-billion to buy it.

But Mr. Trudeau will not convince Canadians his environment-and-economy bargain is alive by legislating a shortcut past a marine-safety review. Ottawa could appeal, hoping the Supreme Court will overturn a unanimous three-judge Federal Court of Appeal panel, but that could take years.

It’s not impossible. The court reiterated that Indigenous groups don’t have a veto. They can’t obstruct consultations. The government must listen to concerns for their rights and try to accommodate them. It’s not a return to Square 1.

Justice Eleanor Dawson, who wrote the Federal Court of Appeal ruling, said the concerns of First Nations are “specific and focused,” so the future consultations can be, too. This time the government needs to appoint a senior figure, “someone with the confidence of cabinet,” Justice Dawson wrote, who could discuss concerns and how they might be accommodated.

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